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Corrections disobeys another federal court order

Solitary Confinement
By LANCE TAPLEY  |  December 16, 2009

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For decades, as it has with other court orders, the Maine Department of Corrections has apparently been breaching a 1973 federal court’s decree that forbids disciplinary solitary confinement at the Maine State Prison beyond 10 days for minor offenses, or 30 days for major ones.

Nowadays inmates being punished sometimes are kept for months or even years in the psychologically destructive solitary-confinement cells of the 100-man “Supermax” or Special Management Unit of the Warren prison (ironically, given the harshness of solitary, some prisoners are put there to protect them from other inmates). Reformers currently are asking the Legislature to set a 45-day limit on Supermax detention.

The 36-year-old “consent decree,” recently discovered by the Phoenix, resulted from a lawsuit (Inmates of the Maine State Prison v. Mullaney) brought against Garrell Mullaney, at the time the warden of the prison, which was then located in Thomaston. A consent decree is a judge’s approval of a settlement contract between parties — in this case, between the state and the inmates — and turns the agreement into an order of the court.

Thomas Benjamin, the lawyer who brought the suit for the inmates when he worked for the legal-services organization Pine Tree Legal Assistance, said in a telephone interview from his retirement home in Florida that he felt state officials could still be bound by the consent decree, though he assumed, if anyone sued to enforce it, the state would fight its enforcement based on changes in laws and new court decisions. Maine’s attorney general, Janet Mills, had not responded by deadline with her view of the consent decree’s validity.

The decree also requires the prison to observe elaborate procedures in dealing with inmate disciplinary violations and to decide within 48 hours if prisoners will be criminally prosecuted for a serious offense. Some inmates have claimed they have been thrown in the Supermax (also called “segregation”) with little or no due process and languish for long periods there before they know if they will be charged with a crime. The consent decree additionally spells out inmate rights in the prison’s handling of mail and the receipt of literature.

Paul Thibeault, a veteran Pine Tree attorney, recalled that as early as 1983 a federal judge found in a class-action lawsuit that Thibeault had brought on behalf of solitarily confined inmates that the 1973 consent decree had been, in the judge’s words, “flagrantly ignored” by officials.

Besides trying to force Corrections to limit solitary-confinement stays, Benjamin and other reform-minded lawyers and activists of the 1970s succeeded in getting laws passed by the Legislature that extended other rights to prisoners — such as, for those in solitary confinement, the right of the “the prison physician or the consulting psychiatrist” unilaterally to terminate isolation if a prisoner’s mental or physical health required it. Legislators repealed that law in the 1980s.

Other inmate rights won in response to prisoner mistreatment of that earlier era have been reversed by laws or ignored by officials. In the 1970s two federal consent decrees conferred on prisoners the rights to be interviewed by reporters and write letters to them complaining about prison conditions. These decrees have frequently been disregarded when officials found it convenient to do so, though the state admits they haven’t been superseded. A number of attorneys have told the Phoenix that 1970s’ consent decrees are still valid (see “Maine Prison Bosses Violate Court Orders,” by Lance Tapley, June 27, 2007).

In addition to taking the state to court, Benjamin during this period coauthored with Thomas Lux, a Rockland psychologist, several law-review articles that were among the earliest describing the psychological devastation caused by, and shaky legal status of, solitary confinement. In one article they concluded with a quote from author Garry Wills describing America’s treatment of its prisoners as “psychic incineration of our fellow citizens, subtler and more gradual than Nazi extermination of prisoners, but inexorable.”

And that was before the first high-tech supermax had been built. The old Thomaston prison’s segregation unit had only 31 cells and, unlike the Warren Supermax, was not always full. Across the country supermaxes now house at least 25,000 prisoners.

Bill limiting solitary confinement firmed up

Representative James Schatz’s bill to restrict the use of isolation has been all but finalized in negotiations among Schatz, members of the grass-roots Maine Coalition Against the Abuse of Solitary Confinement, and State House bill drafters. Schatz, of Blue Hill, a former corrections officer in Colorado, is a Democrat on the Criminal Justice Committee, which will hold the hearing on the bill during the legislative session beginning in January.

Alysia Melnick, an attorney and lobbyist for the Maine Civil Liberties Union, reported to a December 12 coalition meeting that she’s hopeful prominent legislators will sign on as cosponsors. Outside-the-State-House support also is emerging. The Bangor Daily News recently editorialized in favor of “serious consideration” of the bill, suggesting solitary confinement may encourage an inmate’s return to crime after he’s released.

The bill outlaws solitary for seriously mentally ill prisoners, prohibits any prisoner being kept in the Supermax beyond 45 days unless he had tried to escape or committed an act of sexual assault or other violence, and sets up a hearing, appeal, and inmate-evaluation process.

In the Supermax, prisoners undergo 23-hour-a-day isolation, aren’t allowed television or radios, and cell lights are always on. The many mentally ill Supermax inmates often throw feces at guards, cut themselves, and ram their heads against cell walls. Suicide attempts are common, and some succeed. The Supermax regularly drives sane inmates into mental illness.

  Topics: This Just In , Politics, Politics, Alysia Melnick,  More more >
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 See all articles by: LANCE TAPLEY



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