EDITORIALS

Why Maine prisoners kept the right to publish their writings

Posted March 07, 2016, at 1:27 p.m.

In the absence of strong reasons to restrict prisoner communications, the Department of Corrections has dropped rule changes that would have barred inmates from having pen pals and publishing materials under their own names. This is the right decision. Such restrictions likely would have violated inmates’ constitutional rights, opening up the state to court challenges.

Last fall, the department said it would prohibit adult inmates in all the state’s correctional facilities from posting material on social media, blogging, publishing “under a byline” and soliciting pen pals. The changes were included in a long list of updated penalties, including loss of privileges, segregation and financial penalties, for prisoner misbehavior. The department offered no real justification for the changes.

In a March 2014 memo, then-Corrections Commissioner Joseph Ponte said he had become aware that prisoners were asking friends and relatives to post photos, writing and other material to Facebook and other social networking sites for them. 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.

An Oct. 7, 2015, public notice on the proposed changes simply said: “The revisions are designed to streamline the disciplinary hearing process and add new violations that have become necessary.”

At an October public hearing, every speaker opposed the changes. Corrections Commissioner Joseph Fitzpatrick said he would consider these comments before making a final decision.

Last week, the department sent out a press release announcing the implementation of updated penalty policies that simply said: “Commissioner Joseph Fitzpatrick took into consideration comments from advocacy groups and individuals before signing the new policy.” The policy he signed did not include the proposed changes to prisoner communications.

Specifically, the provisions that prohibited pen pals, publishing material under their own name in the media and posting material on social media or blogging were no longer part of the change package. An exception remains if such posting or blogging, according to the department, “jeopardized safety, security and orderly management of the facility.” The department also dropped a provision that punished prisoners for inflicting bodily injury.

Federal prisons had similar prohibitions on prisoners publishing under a byline, 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 case involved a prisoner at a federal maximum security facility in Colorado. The judge found no security risk that justified chilling the speech rights of more than 198,000 federal inmates.

In a 1987 case involving restrictions on inmates at one Missouri prison sending letters to inmates at another prison, the U.S. Supreme Court set up a four-part test for corrections officials to use in considering restrictions on prisoner communications.

The Turner test asks: 1. Is the restriction related to a neutral government interest, such as maintaining prison security. 2. Does the regulation leave alternate means to exercise constitutional rights. 3. Does enforcing the rule require staff time and prison expense or pose a risk to other prisoners. 4. Are there “easy alternatives” to accomplish the same goals as the regulation but without constraints on prisoners’ rights?

The court ruled that the Missouri pen pal restrictions were reasonable under this test because they only limited communications between prisoners, which they could use to devise escape plans and coordinate gang activity. Maine’s prohibition was much broader and would likely have failed the Turner Test.

It is understandable — and reasonable and proper — for prison officials to put limits on prisoner behavior, both to maintain prison security and to shield victims and their families from harassment, for example. However, courts have made it clear that such restrictions must be weighed against prisoners’ rights — and be narrowly tailored.

In this case, it was clear that the communications prohibitions would violate prisoners’ constitutional rights with little benefit within state correctional facilities. The department was right to abandon those proposed changes.

 

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