Maine prisons’ due process loophole
Tuesday, July 20, 2021 11:11 AM
When you are charged with a crime but found not guilty in court, the Constitution protects your right to not be punished for that crime. The double jeopardy clause of the Fifth Amendment guarantees that you cannot be prosecuted more than once for the same crime after an acquittal or a conviction, and it prevents imposing multiple punishments for the same crime.
But in Maine prisons, where internal disciplinary courts hear cases of alleged inmate rule-breaking, “not guilty” is often meaningless. Prison staff routinely take disciplinary charges into account, regardless of the verdict, when making decisions that affect inmates’ privileges, custody level, good time, and access to mail and visits, effectively punishing them for the violation even if they were cleared of it.
The attitude that not guilty findings can be ignored pervades management decisions at Maine correctional facilities. It is written into the Department of Corrections’ disciplinary policy in provision G 13, which states that “any action” can be taken in response to “conduct constituting a disciplinary violation,” in the interest of security, “regardless of whether the disciplinary process is initiated.” If it is, “a dismissal or a finding of not guilty does not preclude taking any such action,” because these actions are “not in the nature of punishment.”
In a disciplinary hearing, due process protections ensure an inmate can effectively defend himself from false accusations, whereas these do not apply to the actions covered in provision G 13.
The administration contends that this provision is necessary because if a disciplinary case is dismissed for technicalities or due process errors (see June 22, “Blind Spots in Oversight”) they still need to respond to the behavior. However, prisoner advocates argue that it leaves the door wide open for abuse.
No other state includes this broad an exception to due process in its disciplinary policy. Other states also use a variety of tools like administrative segregation, privilege level systems and inmate classification to control prisoner behavior, but they generally make a clear distinction between those and disciplinary actions, while in Maine they overlap.
When the DOC reviewed and revised its disciplinary policy in 2019, it proposed only minor amendments to provision G 13. Commenters argued against the provision in its entirety because of its treatment of not guilty findings.
“You don’t pay any attention to a prisoner’s rights after being found not guilty,” Joe Jackson, director of Maine Prisoner Advocacy Coalition, said at a hearing on the revisions. “You take all this time to write this policy all the way out just to insert at the very end that there’s another process by which some of these same punishments that prisoners are subjected to after they’re found not guilty can still happen.”
Privileges and good time
One of the management tools covered in provision G 13 is the “privilege level system,” affecting such things as the amount of time an inmate is allowed out of his cell, access to electronics and visits. The lowest privilege level confines inmates to their cells without electronics for all but two hours per day, one hour more than inmates serving a disciplinary sanction through the disciplinary process.
Jackson said he opposes the privilege level system because it does not work in tandem with the disciplinary system — a person can be dropped a level for a behavior for which he was found not guilty.
“While we found there are a lot of things wrong with the disciplinary system,” he said, “it is a system that allows for the prisoner’s voice to challenge whatever in particular he is charged with. The level system is not. We’re arguing [that] an objective system, no matter how flawed, is being trumped by a subjective system and trumped by a system where the prisoner’s voice is silenced.”
Department of Corrections Commissioner and former Maine State Prison Warden Randall Liberty said in a 2019 interview that the decision to drop someone to a lower privilege level is “objective” and made by a board consisting of the unit manager, case worker, and sargeants.
“We don’t want the officer that was involved to say emotionally, ‘You’re dropped’; that’s not the way it goes,” he said. “There’s a review process. … They take the totality of the information for that time and say, Well there were three incidents during this period, let’s drop him, or maybe he had a tragedy in his family, maybe a death or something, let’s consider that, let’s go a little softer on him.”
Another tool staff can use outside of the disciplinary process is withholding an inmate’s good time for the month by issuing him a “prisoner performance report” (PPR) for alleged poor behavior.
Earned good time, or days deducted from an inmate’s sentence each month for working a prison job and good behavior, can be taken away as a sanction for a disciplinary violation. An inmate can lose anywhere from seven to 90 days of earned good time per violation, depending on its severity.
Prisoners say they get a PPR for every disciplinary write-up and lose that month’s good time no matter the outcome of their disciplinary hearing. Further, though state law requires all documentation of prison disciplinary violations be expunged from the inmate’s record after a finding of not guilty, PPRs for the same behavior remain on their record, affecting future decisions about custody level, job assignments, programming eligibility and probation.
Maine’s statute on prison discipline requires a fair hearing before any punishment that affects the length of imprisonment, but administrators say that withholding good time is not the same as deducting it.
“Conduct-related good time … can be withheld, or not earned,” Deputy Commissioner Ryan Thornell said. “It is a different statutory process … parallel to the disciplinary process, because it is about conduct, not a confirmed incident write-up.”
The U.S. Supreme Court ruled in the landmark 1974 case Wolff v. McDonnell that good time is a protected “liberty interest” when state statute provides for the right to earn good time and for its deprivation as a sanction, as in Maine, and that due process is required for sanctions involving liberty interests. The justices did not discuss a distinction between withholding and deducting.
Pointing to that ruling, the Maine State Prison branch of the NAACP unsuccessfully petitioned the DOC in 2018 to require that any withholding of good time be subject to a hearing.
During the public comment period on the NAACP’s amendment and other proposed revisions, Gail Libby of Limerick wrote about her daughter’s experience with prisoner performance reports at Maine Correctional Center. All documentation of a disciplinary violation for which her daughter was found not guilty was expunged from her record, as required by statute, but the PPR she was issued for the alleged incident was not. Later, her application for home confinement — which had previously been approved — was denied because of the PPR on her record.
“‘Just because you are found not guilty doesn’t mean it didn’t happen,’” she wrote. “That is a standard statement inside the walls of MCC to inmates. … What is the point of a disciplinary board if this is the attitude of MCC decisionmakers? It is simply laughable that this is ‘not the nature of punishment.’”
The attitude is evident at Maine State Prison as well, and has been repeated to me many times by staff and officials through the course of my research into the DOC’s disciplinary policy.
One of the disciplinary hearing officers at the prison, Captain Harold Abbott, said that he finds “quite a few” prisoners not guilty because prison staff did not correctly follow policy procedures.
“That would constitute me finding them not guilty on technicalities, so therefore the staff still needs a way to respond to that incident, and that’s what this paragraph allows for,” he said in a 2019 interview at the prison. This past year about 14 percent of cases were dismissed for technicalities, according to Maine State Prison Warden Matthew Magnusson.
Deputy Warden Troy Ross, who was also present at that interview, said, “To be fair, in the discipline part, if we violate our policies, sometimes you need another [way to deal with the incident].”
Deputy Commissioner Thornell said in a 2019 phone interview, “We have write-ups that get tossed out because of timelines or documentation, but that doesn’t mean that the conduct did not occur.”
Warden Magnussen said last month, “If [a write-up] is thrown out because of a technicality — say we didn’t investigate in the first 24 hours, but the video shows someone walks across their day area and punches someone in the face … we’re still going to say, No, the behavior was still there.”
But it is not only in such clear-cut cases where the inmate’s guilt is indisputable and there were technical errors in the process that this provision is being applied.
When guilt is disputed
Douglas Burr spent nearly two years in segregation for alleged trafficking, even though his disciplinary case on the matter had been expunged and later overturned in state court for due process violations (the guilty decision had been based on a confidential report that was not presented or summarized for Burr at the hearing). No drugs were ever found and no criminal charges were ever filed. Still, he was told he would not be released until he admitted to the violation.
In a 2019 hearing in Kennebec Superior Court in the long-running lawsuit on the matter, Burr said he had appealed his continued segregation after the charge was expunged.
“My argument was: This was removed and erased from disciplinary and from my record as it never happened, so why am I still being punished and still housed in ad seg and now the administrative control unit?,” he testified.
Justice Michaela Murphy questioned how the prison can continue to punish someone when their guilty finding was overturned. Assistant Attorney General James Fortin, representing DOC, cited provision G 13 (then “F”). He said that treating an expunged incident as if it never happened is “a somewhat naive view of the necessities of prison management.”
Justice Murphy sided with Burr, writing that the DOC “failed to point to any conduct … which justifies the continuing restrictions,” in the order denying the state’s motion to dismiss.
Fortin shifted tack in later filings, saying the segregation was allowed under the DOC’s administrative segregation policy, and that became the focus of the rest of the proceedings. The case is being settled out of court, according to a Kennebec Superior Court clerk.
Provision G 13 may come up again in a case pending in Knox Superior Court. When an appeal of a disciplinary case is granted in state courts, the guilty findings are vacated and the case is sent back to the prison for a new hearing. Inmate Steve Antcil filed a motion for contempt alleging that he had not received a new hearing after his successful appeal of a disciplinary charge, and that the prison used an overturned disciplinary charge to deny him reclassification to medium custody from maximum custody.
Deputy Warden Troy Ross responded in a June 24 affidavit that a variety of factors are considered in classification hearings, including program participation, work assignments, and progress in meeting the goals of the inmate’s case plan, as well as conduct for which an inmate has been charged, whether or not he was found guilty.
“The classification instrument takes into account all conduct by a resident, whether or not it is charged, expunged, or part of a guilty finding,” he continued.
The justice is still considering Anctil’s request for hearing and motion for contempt.
Other inmates have alleged, in court cases, internal grievances and interviews, that they have been subject to retaliatory actions after being found not guilty in a disciplinary proceeding or having had their guilty finding overturned, and that they have been subject to frivolous write-ups, affecting their housing, job assignment and rehabilitative program eligibility. That will be the subject of a future article, part three in this series.
What are the prison’s options?
Disciplinary cases overturned by state courts for due process errors can be reheard in the prison, so the prison still has a chance to respond to the behavior through the disciplinary process. But the write-ups that are dismissed by the disciplinary hearing officer for technical violations are simply thrown out.
If this is causing a security issue, there are other solutions besides creating a loophole that sidesteps the disciplinary process altogether. Most other states have provisions to deal with minor technical errors within their disciplinary policies.
Connecticut’s policy provides that “technical mistakes in the disciplinary process shall not be cause for the reversal or dismissal,” but that the inmate must receive written detailed description of the mistakes prior to the hearing.
South Dakota and Wyoming provide that clerical errors will not invalidate a disciplinary report, but that in those cases, corrections would be made and detailed for the inmate, who would be given an additional 24 hours to prepare for the hearing.
Iowa allows for the disciplinary process to be stopped and re-initiated for “minor deviations from the procedures.”
New York’s policy says dismissals based on due process violations do not constitute not-guilty findings because they are not based on the merits of the case. In those cases the charges may be redrawn and the process started again.
The closest provision I could find to Maine’s G 13 in another state’s disciplinary policies is in New Hampshire, where an inmate may be removed from a job assignment after a not-guilty finding based on “documented unusual circumstances, confidential intelligence information or first-hand knowledge of individual misbehavior.” However, that is related to job assignment specifically, not “any action,” as in Maine’s policy.
The furthest policy from Maine’s is California’s, which prohibits innuendoes of guilt of prisoners who were found not guilty.
California’s policy reads: “Care shall be exercised in the wording and phrasing of comments [on specific forms] to avoid innuendos and implications that would lead a reader to believe that the inmate is in fact guilty of the charge without regard for the determination arrived at in the disciplinary hearing.”
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