Keighan Robichaud is scheduled to be released from the Maine State Prison in mid-June, but, back in March, he wondered if the state might consider releasing him early so he could be there for his children in case his grandparents, who are caring for his son and daughter, got sick. The answer was no. Credit: Courtesy of Keighan Robichaud

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This story was updated to reflect a judge’s ruling on the ACLU of Maine’s lawsuit against the Maine Department of Corrections.

When Keighan Robichaud learned that the coronavirus had arrived in Maine in mid-March, posing a particular risk to the elderly, he worried what would happen to his two youngest children if his grandparents fell ill. Robichaud’s grandparents are caring for his 4-year-old son and 6-year-old daughter, while he completes a three-year sentence at the Maine State Prison for selling drugs in Aroostook County.

Robichaud, 24, is scheduled to be released in mid-June, but back in March he wondered if the state might consider releasing him early so he could be there for his children in case his grandparents got sick.

During the pandemic, his interest in an early release wasn’t so unusual. Across the country, prisons and jails have worked to lower their populations to avoid becoming hotspots for infection. Some have still recorded the nation’s worst outbreaks of COVID-19, the illness caused by the coronavirus.

[Our COVID-19 tracker contains the most recent information on Maine cases by county]

But the Maine Department of Corrections is only using a single program to release people from custody before their time is up, and Robichaud does not meet its narrow criteria. The supervised community confinement program allows prisoners to live in the community under supervision, but eligible prisoners must be classified as minimum security, be within 18 months of their release date and have a plan for their housing and well-being waiting for them.

As of May 27, 95 men and women had been released through the program, with five having returned to prison for violating the rules, according to corrections officials. Another 20 people were awaiting release through the program as of that date.

Robichaud, who lost his minimum security designation when he failed a urine test last fall, said he feels “completely without options.” That’s the case for the majority of the nearly 1,900 people still in state custody, including everyone in the state’s two largest prisons.

Prisoner advocates argue that, under the current policy, the state won’t be able to reduce its population enough to allow prisoners and correctional staff to socially distance and keep themselves safe in the event of a large outbreak. Fueling concerns are reports from prisoners that staff don’t always follow rules to wear masks when in close proximity to others.

Correctional officials dispute that. They also disagree with advocates about how to weigh the risk the pandemic poses to prisoners against the duty to hold them accountable for their crimes.

The conflict illustrates why it has been harder and more contentious for Maine to shrink its prison population than its county jail population, both of which keep inmates in close quarters behind bars but house people at different stages of the criminal justice system. Those trends have also been true nationally, according to a report by the Prison Policy Initiative.

In Maine, jails slashed their overall population by 40 percent in the first six weeks of the pandemic. Meanwhile, the population of the state prison system has shrunk only about 13.5 percent, according to population data on the Department of Corrections’ website.

The Maine State Prison in Warren. [Gabor Degre | BDN]

Those who want to see a further decrease in the state prison system are worried that people behind bars are unsafe. They believe the Mills administration should consider a broader range of prisoners for early release, such as through medical furloughs and commutations, as states such as New Jersey and Kentucky have.

It wouldn’t necessarily mean releasing everyone who falls into an expanded review, but it would give prisoners like Robichaud a forum to argue their case.

Prisoners who are nearing their release date, who are about to rejoin their community anyway, especially if they are the primary caregivers for children or an elderly person, should be considered for early release, a group of 26 organizations that work with prisoners said in an April 20 letter to Gov. Janet Mills and Randy Liberty, commissioner of the Maine Department of Corrections.

“My grandmother is 68. My grandfather has stage 3 lung cancer. [The virus] has the potential to be very bad for our family,” Robichaud said in a phone interview. “I’m not in on violent charges. I’m in on a trafficking charge, and my children don’t have anyone else.”

Advocates are especially concerned for the more than 900 prisoners, or about half of the population, whom correctional officials determined are at serious risk of illness or death if they get sick. The American Civil Liberties Union of Maine has sued the Department of Corrections to allow medical furloughs for this group, arguing it cannot guarantee the social distancing measures necessary to keep two ailing men at Mountain View Correctional Facility in Charleston safe.

On Monday afternoon, a judge denied the prisoners’ petition for immediate release, saying the prison didn’t have enough COVID-19 cases to warrant the measure yet. He also said he needs more information before ruling on whether confinement violates the rights of every at-risk prisoner.

Liberty, the corrections commissioner, disputes the allegation that his staff can’t keep prisoners safe at current population levels. Maine is one of the few state prison systems that has warded off a major outbreak, he noted.

Last month, four inmates at the Maine Correctional Center in Windham tested positive for the virus, and all have since recovered — seeming to show the virus can infiltrate the department’s rigid screening protocols but also that officials can contain it.

“I contend that we can maintain social distancing, and, in those cases we cannot, we follow the same recommendations that are occurring in society,” Liberty said. The prison could just lock everyone in their cells at all times, ensuring little contact between people, but he said he wants to balance safety with maintaining some normalcy of life for prisoners.

Prisoners at every adult facility in the state have described a different reality, however, in which staff don’t always follow rules around wearing masks, according to court documents filed by the ACLU of Maine. Robichaud described similar examples, saying that, more than once, a guard has gotten within inches of his face without a mask on to see if he swallowed his medication.

“It just astonishes me that they’re outright denying people the right to stay safe, and the staff basically spits in our face by disregarding our safety,” he said.

If he were to catch the virus from a guard, he said he’s worried he could pass it on while he’s eating meals next to other prisoners or in the common area outside his cell, which he shares with dozens of others.

Liberty disputed that prison staff disregard safety protocols and is skeptical of prisoners who claim otherwise because they stand to benefit.

But his disagreement with prisoners such as Robichaud and advocates for wider release is also philosophical. He is reluctant to release more people because they have been sent to prison for a reason.

Department of Corrections Commissioner Randy Liberty speaks at a news conference in the State House, Wednesday, Feb. 6, 2019. [Robert F. Bukaty | AP]

“For me, as commissioner, I value the judiciary, and I believe that most mayors and Americans hold the judiciary in very high esteem,” Liberty said. “It’s important to me, and it’s important to most Mainers, that when somebody assaults a minor, or, you know, burglarizes or traffics drugs, and people die as a result of that, that these people are held accountable.”

Keeping the public and victims of crime safe matters, too, he said.

But those sentences were decided before a pandemic, said Emma Bond, an attorney for the ACLU. “Nobody in the Department of Corrections custody has been sentenced to death. Nobody has been sentenced to serious and painful infectious disease,” she said.

“When I signed my plea agreement, it had nothing to do with my direct safety being wagered. I’m not going to be quiet about it. I’ve spent months bringing it up,” Robichaud said.

Liberty maintained that the supervised community confinement program is a “generous and appropriate” way to allow people an early chance at freedom, particularly those who have pursued programs to rehabilitate themselves in prison. In advance of the virus appearing in Maine, he began to proactively review anyone in custody who met the program’s criteria, which is outlined by Maine law, and has expedited parts of the process, officials said. Before the pandemic, eligible prisoners had to apply on their own.

That ongoing effort has helped decrease the prison population, but the numbers have also fallen because prisons have stopped accepting new admissions from county jails and through attrition, as people have come to the end of their sentence. In the last three months, the overall adult population fell from about 2,150 prisoners to 1,860, as of June 4, according to the Department of Corrections’ website.

County jail populations have declined through other means. Unlike prisons, county lockups primarily house people who haven’t been convicted of crimes, meaning criminal justice officials have been able to reduce their numbers by arresting fewer people and releasing more people on bail.

Robichaud applied for an early release even though he knew he wasn’t eligible. He used to be classified as minimum custody and was even transferred last fall from the Maine State Prison up the coast to a re-entry center in Belfast, he said. But he was sent back to the Warren prison when he failed a urine test.

He decided to participate in an educational program for people with substance use disorders and in the prison’s medication-assisted treatment program. He hoped those might earn back his low-risk classification, but those plans fell through when he was written up for a non-violent disciplinary infraction, he said.

Still, he wrote pleading letters to the warden to consider his case anyway.

“I have a support system, I have a home, I have a positive plan, and I promise you I would not let you regret it,” he wrote to Warden Matthew Magnusson.

He was afraid to get sick with COVID-19, too, saying he was beyond “worried and stressed out regarding the potential of contracting the virus here due to the inability to properly socially distance.”

When he was officially denied a chance for home confinement, he looked for other ways to get out of prison early.

He contacted his lawyer to see if the courts could reduce his sentence by a few weeks, but his case didn’t meet the criteria for that, either.

He wrote a letter to Mills, hoping she would commute his sentence.

“Currently both of my children reside with my grandmother who does have underlying conditions. Their mother is not in the picture. I am all they have,” he wrote in an April 15 letter.

But the board that hears commutations isn’t scheduled to meet until after Robichaud’s release, which is planned for mid-June. The governor is not commuting sentences during the pandemic in an effort to decrease the prison population, according to spokesperson Lindsay Crete.

Mills has received about 20 emails from concerned family members seeking the early release of their loved ones behind bars because of the pandemic, but “believes the approach the Department is taking represents the best way to protect the health of the incarcerated, safeguard the public, and protect victims,” Crete said.

No matter what, Robichaud will be a free man in a few weeks. And while that will soon make his struggle moot, he believes, like others, that his nearing release date strengthens his case.

“Why can’t you give me the opportunity to nip it in the bud right now, when we know I don’t have it?” he said. “I don’t know what exactly must go into an early release on a sentence, but I didn’t think it would be an astronomical feat of the governor during a pandemic.”