Two of eight vehicles participating in a “Vehicle Vigil in Solidarity with Incarcerated Mainers” are seen parked on State Street in front of Kennebec County jail in Augusta on April 24. Kennebec Journal photo by Joe Phelan

As the coronavirus kills more people in prisons across the country, Maine advocates are pushing for the release of more inmates – and more information – before an outbreak happens here.

The state is reviewing candidates for home confinement more quickly and increasing the number of people who are finishing their sentences that way.

But it is using the same criteria as before to determine who should be released and who should be denied. The governor and the Maine Department of Corrections have not expanded eligibility for home confinement to additional groups of inmates or issued commutations, steps that have been taken in other states.

And Maine has been less transparent than other states about what’s happening in prisons, especially when it comes to tracking and sharing information about employees who have been tested for the virus.

The department says no inmates have tested positive for the disease, and the one staff member at a Warren prison who was known to have contracted the virus has recovered.

Advocates argue more should be done before the virus can spread through a Maine prison the way it has swept through facilities in Michigan, North Carolina, Ohio and other states. Available data suggest at least 250 inmates and staff across the country have died.

“Without physical distancing, our prisons are all but certain to experience serious outbreaks of COVID-19 that endanger prisoners, staff, and our communities,” said Emma Bond, a staff attorney at the American Civil Liberties Union of Maine. “Yet in the midst of this pandemic, the Maine DOC has done little to reduce prison populations and facilitate distancing.”

The head of the Department of Corrections said he is reluctant to release people early because judges hand down sentences for certain reasons, and he is concerned about the lack of community support and housing for people who might otherwise qualify for home confinement.

Randall Liberty, commissioner of the Maine Department of Corrections Kennebec Journal photo by Joe Phelan Buy this Photo

“We’re pushing it about as far as we can probably push releases without creating public harm,” Commissioner Randall Liberty said in an interview last week.

At least a dozen governors and the U.S. attorney general have taken explicit steps in recent weeks to reduce the number of people in prison, such as issuing commutations or expanding the criteria for early release.

Maine Gov. Janet Mills, a Democrat and former attorney general, has said she is not issuing commutations, which reduce the sentences of currently incarcerated people.

“The Administration believes the approach the department is taking represents the best way to protect the health of the incarcerated, safeguard the public, and protect victims,” said Lindsay Crete, a spokeswoman for the governor’s office.

The people who are being considered for home confinement have not committed crimes against people, like domestic violence or sex offenses.

But some incarcerated people who did think they would qualify say they have been denied under overly strict criteria, and anxiety is high in prisons.

“I’m really scared for my life,” said Marc Atwater, who is incarcerated at Bolduc Correctional Facility in Warren.

Atwater, 38, is serving four years for drug trafficking. His earliest possible release date is next August. He said he was denied home confinement because he had too much time left on his sentence, despite an autoimmune disease that could make him especially vulnerable to the virus.

The department declined to speak in detail about individual candidates for home confinement but said Atwater has a current release date outside of the allowed window and prior convictions that do not meet the current criteria.

“I’m not asking to be pardoned,” Atwater said. “I’m just asking to be monitored on home confinement where I could be quarantined.”

***

There were 1,968 adults and 31 juveniles in Maine prisons on Friday.

Maine has six adult facilities and one youth facility. Four – Mountain View Correctional Facility in Charleston, the Maine Correctional Center and the Southern Maine Women’s Reentry Center in Windham, and Long Creek Youth Development Center in South Portland — are in counties where public health officials have documented community spread of coronavirus.

The number of adults in prison has gone down 8.8 percent from 2,159 at the beginning of March. The number of juveniles is down 40.3 percent from 52 in that same time period. But the cause for those drops is nuanced.

Fewer people are coming in. In response to the the virus, courts closed for most regular business, and jails stopped transferring inmates to prisons.

At the same time, people are also finishing their sentences as expected. Over six weeks in March and April, the department released 207 adults. Two-thirds – 133 people – went home because their time was done.

The remaining 74 people were released to home confinement. That is the equivalent of 3.5 percent of all adults servings sentences. The criteria to qualify for home confinement at the end of a sentence have not changed, but more employees are reviewing cases to identify people who could be released. At the beginning of March, only 25 people were on home confinement.

“We’ve expedited the process, so we’ve put a much greater level of detail and staffing into this,” said Ben Beal, the department’s director of classification. “It’s all hands on deck.”

State law sets the basic criteria for home confinement. An eligible inmate must be classified as minimum security, must be within 18 months of release and must have finished at least half of his or her sentence. Maine does not have parole.

During the pandemic, the department has prioritized cases by using an even stricter set of criteria than usual. Inmates who have committed crimes against a person are not eligible. The release date must be within a year, although a spokeswoman said people who are applying with a release date within 18 months are still considered. Other factors include the inmate’s medical history, housing situation and past compliance with probation conditions.

Liberty said that the department had reviewed 229 people as of April 17 for release to home confinement, and 107 had been rejected. A few dozen cases were still pending, and he expected new candidates would be added to the list. Most applications were denied because of  a lack of housing, prior convictions or a history of probation violations, he said.

“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.”

The department often consults local law enforcement before approving an inmate for home confinement. Cumberland County Sheriff Kevin Joyce said he recently told the state he supported home confinement for one person because they had a sponsor and a place to go in the community, but he rejected another because police had been called to their address multiple times prior to the actual arrest.

“It’s not scientific,” Joyce said. “You’re weighing, what is the likelihood that this is going to be a good experience or a bad experience?”

But critics say the department should be more broad in its interpretation of the program criteria. For example, the ACLU of Maine and other advocates asked the governor and the commissioner to consider all inmates who are over the age of 50 or who have chronic diseases, and they asked the state to consider its ability to grant medical furloughs as one option.

The ACLU of Maine filed an emergency motion for bail on behalf of an inmate who is serving a sentence for aggravated forgery and driving offenses. Court documents show Joseph Denbow is in remission from cancer, and he also suffers from chronic asthma and COPD. He is due to be released in August from the Mountain View Correctional Facility in Charleston, but he was denied home confinement.

“This example illustrates the concern that DOC is applying (the criteria) in an overly narrow way that does not confront the deadly risk of a COVID-19 outbreak in Maine’s prisons,” Bond said.

Richard Lee also thought he would be eligible for home confinement to avoid the risk of exposure in prison. He is near the end of his sentence at Bolduc Correctional Facility for drug trafficking, and his earliest possible release date is May 3. Until the virus shut down some programs, he said he was previously allowed to leave to work a construction job and attend church.

Lee said he was denied home confinement last month because he wants to live with his wife, who was also a defendant in his case. She has completed her sentence and probation for her own conviction, but the department saw their shared criminal history as a risk factor, he said.

The department again declined to speak about individual candidates for home confinement but said Lee has prior convictions that would also make him ineligible for the program under its current parameters.

“Without a doubt, it’s congregated living,” Lee, 52, said. “What scares me to death, I see all these stories about the people that are living in the nursing homes. We’re in the same boat as them, but we’re not even being discussed.”

***

During a briefing last month for more than two dozen legislators, Liberty compared Maine to California, which had released more than 3,400 inmates on an accelerated schedule in the first two weeks of April – a number that represented only 2.9 percent of the incarcerated adults in that state.

“We already have a very small incarceration rate compared to many others,” Liberty said in an interview. “That’s something to consider when we’re talking about who should be released.”

Some states have used more tools to drive releases than Maine has, although it is too soon to know how many people will actually be released as a result.

Governors in New Mexico, Kentucky and Oklahoma have announced commutations for certain inmates, including those people who are serving sentences for nonviolent crimes and are within weeks of release. The Illinois governor signed an executive order giving the department more discretion to grant medical furloughs, in addition to granting some furloughs. Maryland’s governor directed the state’s parole board to accelerate consideration of inmates who are over 60 years old and have an approved reentry plan. In Colorado, the governor’s executive order could similarly allow for hundreds of early releases to parole.

And other states have resisted pressure to do the same.

The governor of Arizona has said he will not release inmates due to the virus. In Texas, the state’s highest court upheld the governor’s order to limit the release of inmates from jail, which usually hold people on bail who have not yet been convicted of crimes. The Texas parole board is still holding hearings for sentenced inmates but said it will not changes its decision-making due to the virus. In Massachusetts, advocates have turned to the courts because the governor has not announced any specific policy changes, especially for sentenced people in prison.

Sharon Dolovich, a professor at the UCLA School of Law and the director of the school’s Prison Law and Policy Program, leads a team that is tracking coronavirus cases and deaths among incarcerated people nationwide.

She said it is too soon to know whether releases in other states have reduced the risk in those facilities, but she predicted that even those efforts are not dramatic enough to prevent more outbreaks and deaths among incarcerated people and corrections employees.

“We have chosen to hold people under conditions that turn out to be a vector for this disease,” Dolovich said. “And we know for a fact that there will be disproportionately high infection rates and disproportionately high death rates.”

***

The Maine Department of Corrections also has been criticized for its lack of transparency amid the pandemic.

Liberty turned down a series of interview requests in recent weeks, but spoke to a Portland Press Herald reporter after the newspaper learned the department held two legislative briefings without providing notice to the public or the media.

“We will improve that moving forward,” Liberty said when asked about the department’s lack of transparency.

The department now posts a daily count of inmates and an update on testing on its website. That dashboard has become more comprehensive over time, but does not have the same level of detail that is available in other states.

It includes the total numbers of tests, inmates in isolation and quarantined housing pods. According to the dashboard, 21 people in adult prisons statewide had been tested as of Friday because of possible symptoms, and all were negative. One additional person had refused to be tested. One juvenile at the Long Creek Youth Development Center tested negative.

But the dashboard does not say in which facilities those adults are incarcerated or include any information about staff. Those details are readily available and updated other states, including New Mexico and Pennsylvania.

Asked for more detail, the department disclosed the facilities for the 22 people who met the criteria for a test. Twelve were at the Maine Correctional Center. Five were in the women’s unit there or the neighboring reentry center for women. Three were at the Maine State Prison in Warren. Two were at Mountain View Correctional Facility.

On March 31, the department announced that a worker at the Bolduc Correctional Facility had tested positive. That person had been quarantined since March 20, but a press release about the test result 11 days later was the first indication of a potential case in the department. Liberty said that person, a substance use treatment provider who works for a contracted medical provider, has since recovered and returned to work.

The commissioner said last week that he would be glad to include data on staff testing in the daily update. In a later email, however, Liberty said the department is only tracking the number of positive tests among employees, not the total number. The decision to test for coronavirus is between a patient and a doctor, he said, and the department cannot verify or mandate it.

Dolovich, the law professor who is tracking cases in jails and prisons, called the decision not to track those employee tests “irresponsible” and “ill informed.”

“The correctional officers, not only are they spreading it inside the facility, but they’re taking it home to their families,” she said.

Liberty also said last week that no inmates were tested for coronavirus as a result of their exposure to that employee. Eleven were quarantined and monitored by medical services.

“No tests were necessary for COVID-19 as no clients or staff became symptomatic as a result of exposure,” Liberty said in an email Friday.

In Vermont, which like Maine has a low incarceration rate, testing has been more widespread in the state’s prisons and has found unexpected infections. When one inmate tested positive April 8, the state administered 328 tests to all staff and inmates in that facility. At least 32 inmates and 16 staff were positive, and at least 28 of those inmates were asymptomatic.

Liberty said the department is following current guidelines for testing.

“If the CDC determines that is the appropriate level of testing, that we do the entire facility, I am confident that we would have access to the entire level of services,” he said.

Jim Mackie, Maine representative for AFSCME Council 93, the union that covers more than 600 workers in the state Department of Corrections, said he hopes universal testing can happen in Maine’s prisons, too.

“If we could come out of this with no positive tests for staff or inmates, boy, everybody deserves a medal,” Mackie said. “But I think testing would be the best way to go. That way, we can find out preemptively whether it’s an inmate or staff and get them quarantined. If you get a positive test like that in a place like that you, you know it’s already been there for weeks.”

The response to Maine’s policies in its prisons so far has been mixed.

Nearly two dozen groups including Maine Youth Justice, the Maine Association of Criminal Defense Attorneys, the Maine Prisoner Advocacy Coalition and the Maine People’s Alliance sent a letter to Mill and Liberty to call for more releases. Advocates organized social media campaigns last week and held vehicle vigils outside two county jails recently.

Some lawmakers have asked for more information or voiced concern about Maine’s response so far.

“We’re concerned about the fact that there is not hospital-level care in any of our prison facilities, so when you’re thinking about a possible outbreak, we are going to need to bring those folks who are incarcerated out of those facilities to a place where there are respirators,” said Rep. Charlotte Warren, a Democrat from Hallowell who co-chairs the Criminal Justice and Public Safety Committee. “It all of a sudden becomes a problem of our entire community.”

Rep. Jeffrey Evangelos, an independent from Friendship, said the state needs to be more aggressive to protect incarcerated people and corrections staff before an outbreak is discovered.

“What I’m hearing from both the governor and the commissioner is that they are operating under the same protocol that they were operating under prior to the COVID-19,” Evangelos said. “In respect to that, I think we need to make some adjustments like some other states are making.”

But not everyone is asking for more releases.

Rep. Patrick Corey, a Republican whose district includes the Maine Correctional Center in Windham, did not endorse a specific approach but said the state also needs to consider the rights of crime victims.

“People, at the end of the day, need to serve their time,” Corey said. “But that needs to be carefully balanced with keeping people healthy.”

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