December 13, 2017
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Battle shaping up over Maine inmates’ First Amendment rights

By Judy Harrison, BDN Staff
Updated:
Gabor Degre | BDN | BDN
Gabor Degre | BDN | BDN
Inmates like these shown at the Maine State Prison in Warren in 2010 are currently prohibited from many forms of communication with the outside world. Prisoner advocates hope to change the rules.

AUGUSTA, Maine — Prisoner advocates and representatives of the American Civil Liberties Union of Maine plan to use a hearing Monday on proposed changes to the policy governing inmates within the Maine Department of Corrections to protest rules that limit the ability of inmates to communicate outside prison walls.

Current policy forbids inmates in the state prison system from soliciting pen pals, acting as a reporter, publishing under a byline, hosting or being a guest on a broadcast or acting as an agent of the news media, according to Jody Breton, deputy commissioner for the Maine Department of Corrections. That prohibition was reviewed and approved by the Maine attorney general’s office several years ago, she said Tuesday in an email.

Information circulated by an advocacy group for prisoners’ rights has incorrectly said the prohibition is new language included in proposed rule changes to be considered at Monday’s public hearing, setting up an apparent legal battle over the First Amendment rights of inmates.

“The revisions are designed to streamline the disciplinary hearing process and add new violations that have become necessary,” the DOC said Oct. 7 in announcing the proposed rules and setting Monday’s hearing.

Breton said Tuesday in an email that no one in the department could explain or comment on the proposed policy changes until after Monday’s hearing and the public comment period that closes Nov. 5.

She also said that rules concerning inmates having pen pals and publishing in newspapers, magazines and on blogs are policies that have been in place for years and do not fall under the category of “new violations” listed in the announcement.

The entire proposed policy was made public, but unlike bills presented to the Maine Legislature that strike out the language to be eliminated, the proposed policy does not indicate what is new language and what is to remain unchanged.

The Maine Prisoner Advocacy Coalition posted on its website a copy of the proposed policy that highlighted sections that the organization believed to be new. Incorrectly highlighted and labeled as “new” were sections about soliciting pen pals, acting as a reporter, publishing under a byline, hosting or being a guest on a broadcast or acting as an agent of the news media.

Joseph Jackson, coordinator for the organization, said Wednesday that criminal statutes include the definitions of the words included in the law. For example, operating under the influence of intoxicants and assault are defined in the statutes. The DOC’s disciplinary rules do not include similar definitions, he said.

“That leaves words like ‘pen pal’ and ‘agent of the news media’ open to interpretation by whoever is enforcing the rule at the time,” he said.

Zachary Heiden, an attorney with the ACLU of Maine, said that it doesn’t matter whether the policy governing outside communications is old or new. Rules that prevent inmates from communicating and/or publishing their writings are unconstitutional.

“Prisons should encourage prisoners to communicate with the outside world, because strong ties to the community mean prisoners are less likely to reoffend,” he said Tuesday in an email. “Prisoners are an important source of information about what is happening in prison. Prison reform has always been based on first-hand accounts from inside the prison walls.”

Courts outside of Maine have found similar rules unconstitutional, he said.

Potential punishments for violating rules concerning pen pals and outside communications under the proposed changes could include any or all of the following: disciplinary segregation or disciplinary restriction or both for up to 20 days; loss of good time for up to 20 days; loss of privileges for no more than 20 days; assignment of extra work in lieu of recreation for no more than 20 days; a monetary sanction of up to $75; counseling and/or a verbal reprimand and/or warning.

While the rules appear to forbid publication on a blog, at least one inmate at the Maine State Prison has been maintaining a religious blog with the help of a Brewer woman.

Randall Daluz, 27, of Brockton, Massachusetts, who is serving three life sentences for murder and arson, has had two articles posted this month to his religious blog, The Journal of a New Creation. He has been at the Warren facility since late July.

Breton said in an email Tuesday afternoon that she was unaware of Daluz’s blog but that his writings being published on it is a violation of Maine State Prison rules.

Daluz was sentenced on July 28 at the Penobscot Judicial Center along with his co-defendant Nicholas Sexton, 34, of Warwick, Rhode Island, in connection with the deaths of Nicolle Lugdon, 24, of Eddington, Daniel Borders, 26, of Hermon, and Lucas Tuscano, 28, of Bradford in August 2012.

Concerns about whether the DOC’s ban on certain outside communications is constitutional were raised in June in a Bangor Daily News article about Daluz’s blog. The blog went online in September 2014 while he was incarcerated at the Penobscot County Jail. Having his religious writings posted online did not violate jail rules, Sheriff Troy Morton said in June.

Heiden and the president of the First Amendment Center at Vanderbilt University in Nashville said the policy would appear to violate prisoners’ free speech and religious rights.

“This policy raises a constellation of things concerning freedom of speech, freedom of religion and the rights of prisoners in general,” Heiden said in June. “The Constitution protects all of us, including those who are serving prison sentences.”

Ken Paulson, president of the First Amendment Center, said he did not see how the administration of the Maine State Prison could prevent a person from posting the writings, especially religious writings, of a prisoner.

The hearing on the proposed rules changes will be held at 10 a.m. Monday in the Maine Department of Corrections Tyson Room, 25 Tyson Drive in Augusta.


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