Corrections: a growth industry in Maine

By Stan Moody | Dec 23, 2009

The third-highest budget item for Maine -- right behind human services and education -- is the cost of incarcerating the failures of human services and education.

More than $300 million a year is spent on housing and maintaining services for some 4,000 inmates in a program that has been growing at the rate of 9 percent a year. What any Maine business these days wouldn't give for a 9 percent annual growth rate.

To put that in context, it works out to about $1,000 annually for every family in Maine, or three times the annual cost of monitoring a residential burglar alarm system.

In the tradition of all growth industries, repeat business offers not only job security but also the power to write your own ticket. That bodes ill for the 4,000 men and women already incarcerated and for the 56 percent of released inmates who make it back within one year after release.

"He'll be back" being the common expectation in our penal institutions, it becomes over time a self-fulfilling prophecy. How inmates are treated remains somewhat important, but becomes secondary to the need on the part of prison administration to keep everything in order, under control and, of course, secret.

With that in mind, Rep. James Schatz of Blue Hill has introduced for the upcoming legislative session a bill to establish "minimum standards governing the humane treatment of special management prisoners." In layman's language, this bill will address the conditions under which a person may be committed to solitary confinement and for how long.

Solitary confinement, known in more politically correct circles as "special management," involves safekeeping for mentally ill inmates, discipline cases and inmates who have been beaten by other inmates, a common occurrence. It is a place where inmates are confined to cells for 23 hours a day, have no diversions other than reading and limited writing, wear orange jumpsuits, and are restricted in four-point restraints wherever they go outside their cells.

Solitary confinement is now recognized nationally as a place that drives people crazy. A March 2009 New Yorker article cited studies going back as far as the 1960s that show a "diffuse slowing of brain waves in prisoners after a week or more of solitary confinement." EEG tests conducted in 1992 on prisoners of war in the former Yugoslavia showed brain abnormalities similar to those incurred in traumatic head injuries. John McCain reportedly said of his two years of isolation as a prisoner of war in Vietnam, "It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment."

The article goes on to cite Craig Haney, a psychology professor at the University of California at Santa Cruz, who studied randomly selected inmates at California's Pelican Bay supermax: "After months or years of complete isolation, many prisoners ‘begin to lose the ability to initiate behavior of any kind -- to organize their own lives around activity and purpose. Chronic apathy, lethargy, depression and despair often result.' Almost 90 percent had difficulties with ‘irrational anger,' compared with 3 percent of prisoners in the general population."

Maine missed a golden opportunity to position itself as a leader in the humane treatment of prisoners and is now faced with the nearly impossible task of trying to put the toothpaste back into the tube after three decades of politically popular law-and-order soapbox rhetoric.

In 1973, a general consent decree was issued in the case of Inmates of the Maine State Prison v. Mullaney. In that consent decree, misdemeanor offenses by inmates were not to exceed 10 days of lockup, segregation or solitary confinement. Felony offenses were not to exceed 30 days.

By contrast, Schatz's bill calls for no more than 45 days' consecutive confinement except under extreme circumstances. There are current cases at the Maine State Prison where inmates have been held in solitary confinement for years.

On March 27, as a chaplain responsible for the solitary confinement unit, I wrote an internal memo, bringing attention to what I considered to be widespread violation of the law as set forth in Maine Revised Statutes 3032, Disciplinary Action. I cited the case of one inmate segregated for selecting a Buddhist magazine and writing an innocuous note to another inmate in solitary confinement at my request.

The magazine and note were enclosed in an envelope with the return address of the Chaplain's Office and forwarded to the Special Management Unit. This inmate, who has garnered a sterling reputation for teaching other inmates how to read, was immediately taken to solitary confinement and spent nearly one month there under suspicion of stealing the envelope before all charges were dropped. Never once was I notified or informed or questioned.

Another inmate I cited was nearly blind without his glasses and had been in solitary confinement for 80 days on a 30-day disciplinary action, which eventually dragged out to 100 days. His glasses did not make it to his cell with him, rendering him incapable of reading for the entire time in segregation. It was very common at that time for victims of attack by other inmates to be held for months in solitary confinement for their own protection, while the perpetrators were in and out in five to 10 days. The favored rationales for long stays in solitary confinement are "high risk" and "waiting for a bed."

In response to my memo, I received a copy of the special management policy manual, the implication being that policy trumps the law. The problem was not the policy or the law, but that both had given way to convenience.

Schatz's bill, while highlighting for the public an ongoing problem at the prisons, is not without its deficiencies. Its biggest deficiency is the failure to return to the dictates of the consent decree of 1973. In fact, whereas the consent decree cuts solitary confinement off at 30 days for felonies, the bill leaves open a possible indefinite extension beyond 45 days in the event of a felony. The bill is likely, as well, to carry a fiscal note for increased services, tough sledding for legislation these days.

While the bill prohibits the use of chemical agents such as Mace or forcible extraction without an audiovisual record, it outlaws completely the use of instruments of restraint such as chains, handcuffs, leg shackles, restraint chairs and four-point restraints for special management (solitary confinement) prisoners. My guess is that a case will be made for instances where a violent prisoner cannot be handled without restraints or where a security guard is placed in danger by transporting a potentially violent prisoner without restraints. Transportation to medical or mental health facilities comes immediately to mind, as does the simple process of making available the pay phone.

In the June 1975 issue of Clearinghouse Review, researchers Thomas Benjamin and Kenneth Lux published an evaluation of the use of solitary confinement at the Maine State Prison. They made the following observations:

"The courts have recognized that isolation may produce insanity, and that enforced isolation without human contact, recreation or exercise, and for extended periods, is cruel and unusual treatment. Yet prisoners are now in complete isolation and have been for months. In addition, the courts have recognized that a person sent to solitary suffers a grievous loss and is entitled to formal due process protection. However, the prison administration avoids this duty by calling the prisoner's confinement 'administrative' instead of 'punitive' and by instituting 'procedures' which provide no protections at all against arbitrary administrative action.

"The Department of Mental Health and Corrections has as its own express policy that every person under its jurisdiction shall retain all the rights that citizens in general have, and that prisoners in solitary confinement be returned to the general population 'at the earliest possible time.' Nevertheless, it watches prisoners in isolation slowly destroy themselves. It is time for prison administrators to stop hiding behind such words as 'security,' 'segregation' and 'administrative hold' to justify their actions."

Have things changed since 1975? I daresay, not much, if any. Under a cloud of secrecy protected by staff performing as "team players," the management style is more defensive than preventive, leaving the door open to such extreme violations of human rights as the April 2009 Weinstein assault, a common occurrence that spun out of control in his death. There remains plenty of room for the occasional abusive guard, the callous sergeant and the detached administrator at the prison, so long as the violations do not get out of hand and thereby move into the light of public scrutiny.

It is unfortunate that more laws are needed to correct the failure to comply with laws already on the books. It is more unfortunate that the turnover of prison management and within the Department of Corrections is so meager that law has given way to policy and policy has given way to practice.

Change cannot occur in an environment where those responsible for the third most expensive state program have lost sight of the law in their commitment to preserving their jobs and maintaining a status quo that degenerates through failure of public accountability.

Stan Moody, former state representative and chaplain at the Maine State Prison, is the author of "Crisis in Evangelical Scholarship" and "McChurched: 300 Million Served and Still Hungry." He currently serves as pastor at the Meeting House Church in Manchester. His Web site is www.stanmoody.com.

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