The Maine State Prison in Warren. Credit: Gabor Degre | bdn

A group of 53 inmates in Maine received a total of nearly $200,000 in unemployment benefits after losing their work release jobs because of the COVID-19 pandemic.

Gov. Janet Mills ordered those payments to stop, and has called the situation “appalling” and “bad public policy.” To us it looks more like unemployed workers, who lost their jobs during widespread economic and public health upheaval, receiving unemployment benefits.

The idea of any prisoners receiving unemployment understandably looks bad to a lot of people, particularly during the historic demand for these benefits and the accompanying frustration for many Mainers trying to access them in recent months. But based on an opinion from Maine assistant attorney general Nancy Macirowski, it’s legal in the specific case of inmates who were on work release in the state before the pandemic. It’s also far from outrageous.

“The only difference between one of these folks and a person working the exact same job, or any job, is being in the custody of the state of Maine,” Whitney Parrish, a member of the Maine Prisoner Advocacy Coalition, told the BDN. “There is also no difference between what forced them to stop working: a terrible crisis for which no one was prepared.”

To be fair, based on state law and practice before the pandemic, Maine inmates have not normally been eligible for unemployment benefits. So all things are not completely equal when comparing inmates who had been on work release to other Mainers filing jobless claims. But as with most issues during the pandemic, it’s not so simple right now.

Macirowski’s opinion underscores how the complicated layers of overlapping state and federal unemployment law is further clouded by coronavirus relief legislation passed in recent months. Mills could very well be right that neither Congress nor the Maine Legislature meant for unemployment benefits to go to inmates in a temporarily shuttered work release program, but the fact that these inmates are employed by private businesses, and not the state, would seem to open the door.

Not only does it appear to be legal, it could actually be good public policy for work release inmates to continue receiving these benefits during the pandemic. That’s particularly true now that several inmates in the Maine correctional system have tested positive, further emphasizing the possibility of a widespread outbreak at a detention facility.

While Maine’s jail and prison populations have seen decreases during the pandemic, amid justifiable concerns about COVID-19 spreading in congregate settings including correctional facilities, advocates have pressed Maine to do more in terms of releasing inmates through commutations, medical furlough or community supervision. Maine Department of Corrections Commissioner Randall Liberty expressed concern to the Portland Press Herald in May about community support for inmates should they be released early for home confinement during the pandemic.

“Under normal circumstances, it’s difficult for offenders to find the supports they need to be successful,” Liberty said. “Given the scenario now, where everything is shut down, now it’s very challenging.”

Inmates saving up some money, normally earned during work release, but instead coming from unemployment benefits during the pandemic, could help ease at least some of those challenges.

Mills ordered that the unemployment benefits received by the 53 work release inmates — which amounted to an average of $3,750 per inmate, be held by the state in a separate trust account. Liberty told WABI last week that funds would be frozen pending legal review. He emphasized to the BDN on Wednesday that inmates being released back into the community continue to have access to their previously earned income.

“The value of the work release program is not at question here. The governor and I simply think it is wrong for prisoners to receive unemployment benefits, because all of their needs are already being met,” Liberty told the BDN in a statement. “As her letter states, she believes those benefits, particularly the $600 weekly [Pandemic Unemployment Assistant] benefit, should be reserved and prioritized for the thousands of Maine people who are struggling to pay for basic necessities such as rent, food and utilities — expenses inmates do not otherwise have while incarcerated.

Based on state documents about the work release program, participating inmates are in the final two years of their time in prison. And they are already deemed safe enough to temporarily return to work outside prison.

At a time when governments are considering whether and who to potentially grant early release and home confinement to reduce the spread of coronavirus among the prison population, we would think that inmates on work release would be toward the top of the list. The money they were earning through that outside employment — and can apparently receive legally through unemployment, based on input from the Maine attorney general’s office — can help make that transition smoother and safer, both for them and for society.

So while we understand the bad optics of these prisoners receiving unemployment right now, we’re not convinced it’s bad policy.