The most pressing question surrounding proposed prisoner discipline rule changes from the Maine Department of Corrections comes down to one word: Why? Why are they needed? Why is the department proposing them now? The questions are especially relevant to restrictions on prisoner communications, which are protected by the First Amendment.
So far, the department has refused to explain.
An Oct. 7 public notice on the proposed changes simply says: “The revisions are designed to streamline the disciplinary hearing process and add new violations that have become necessary.” The department has refused to answer questions on the reasoning from the media, advocates and others until after Nov. 6, the day the public comment period on the proposed rules closes.
At a public hearing this week, everyone who testified spoke against the updated rules for prisoners at all state-run correctional facilities. It was encouraging to hear that Commissioner Joseph Fitzpatrick intends to consider all the comments and that he is likely to amend the rule proposal. In an interview with the Portland Press Herald, however, he still didn’t explain why the changes are needed.
Without a compelling reason to restrict prisoners’ rights, the updates, which require approval from the attorney general, should not move forward. As for a compelling reason, the Department of Corrections would need a really strong one to justify encroaching on inmates’ court-protected First Amendment rights.
Many of the rules involve prisoner communications, including a section that designates “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.” The proposed rules make it a Class B offense, punishable by segregation, loss of privileges for up to 20 days, a $75 fine or a combination of these and other disciplinary actions.
In a March 2014 memo, then-Corrections Commissioner Joseph Ponte said he had become aware that prisoners were asking to have photos, writing and other material posted on Facebook and other social networking sites. He ordered that all such activity “cease immediately” and that the postings be taken down. Prisoners who didn’t follow this new rule would be disciplined, he wrote.
The proposed rules also would prohibit and set penalties for soliciting and communicating with a pen pal, posting material — directly or indirectly — on social media sites and “[u]nauthorized passing, giving or receiving of any written communication.”
The state’s policy of forbidding prison inmates from publishing their work “under a byline” follows a similar federal prohibition. But that prohibition was removed from Bureau of Prisons regulations in 2012, after a federal court ruled it violated the First Amendment of the U.S. Constitution. The judge found no security risk that justified chilling the speech rights of more than 198,000 federal inmates.
Given that inmates retain First Amendment rights, it is all the more troubling that the Maine Department of Corrections refuses to say why it is strengthening, not abandoning, this rule.
Broad restrictions on prisoners communicating with the world outside prison also undermine their rehabilitation. Most prisoners will return to society after they have served their sentences. Cutting them off from communication with the world outside prison walls is likely to make this transition more difficult. It also takes away their means to alert the world to abuses if they occur.
It is understandable — and reasonable — for prison officials to put limits on prisoner behavior, to maintain security and to shield victims and their families from harassment. However, courts have made it clear that such restrictions must be weighed against prisoners’ rights — and be narrowly tailored.
We think the proposed prohibitions from the Maine Department of Corrections are overly broad and likely fail these legal tests.
If the department is attempting to guard against specific dangers, the department should explain them and then develop rules that specifically address them.